MEDINA v. GULLMAN

Plaintiffs are former tenants of defendants made up of four families: the Medina Family, the Farver Family, the Calosso-Pozzo/McEndree Family, and the Nelson/Nevarez Family. Defendants are Larry and Linda Gullman and their allegedly interrelated business entities. The second amended complaint (“SAC”) alleges that Larry and Linda Gullman operated defendants Bamboo Giant Nursery, Inc., Gullman Property, LLC, LSG Monterey Property, LLC, and Harmony Property Management, LLC. The SAC alleges defendants owned, managed, controlled and operated properties which plaintiffs resided in.

Plaintiffs assert that they faced common problems with the properties, including general neglect and dilapidation, substandard work, deferred maintenance and repairs, hazardous and unhealthy home conditions including electric and plumbing issues, building code violations, mold and water infestation, illegal and unpermitted construction, entries without notice, and retaliatory and threatening responses to complaints

The SAC alleges 13 causes of action: nuisance, negligence, intentional infliction of emotional distress, breach of rental contract, breach of implied warranty of habitability, unlawful demand by landlord, landlord retaliation, trespass by landlord, unlawful conduct by landlord, bad faith retention of security deposit, conversion, fraud and deceit, and common counts. Some of the causes of action are alleged by all the plaintiffs against all defendants; other causes of action are alleged by certain families against defendants.

The Medinas and Leah Leichty resided at the property from November 1, 2016 to October 8, 2023. The Farver Family lived at the property from August 1, 2017 to March 20, 2023. The Calosso-Pozzo Family resided at the property from January 1, 2022 to November 15, 2023. The Nelson-Nevarez Family resided at the property from March 1, 2024 to April 23, 2024. The Medina plaintiffs have separate causes of action against defendants for common counts (services rendered) and conversion, as members of the Medina family and Leichty are alleged to have worked for defendants.

The Farver and the Calosso- Pozzo/McEndree families allege trespass. The Medina and Farver families also allege retaliation.

II. DEMURRER

Defendants demur pursuant to California Code of Civil Procedure Sections 430.10 and 430.30, to all causes of action on the grounds that “(1) [p]laintiffs lack legal capacity and/or standing to sue; (2) there is a defect or misjoinder of parties; (3) the pleading does not state facts sufficient to constitute a cause of action, including because the causes of action alleged are barred by the applicable statutes of limitations; (4) the pleading is uncertain; and (5) the causes of action alleged are duplicative.” (Demurrer a p. 1.)

“A demurrer tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “For that reason, we ‘assume the truth of the complaint's properly pleaded or implied factual

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allegations.’ [Citation.] We also ‘consider judicially noticed matters.’ [Citation.] ‘In addition, we give the complaint a reasonable interpretation, and read it in context.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 15 Cal.App.4th 1308, 1315.)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ (Code Civ. Proc., § 425.10, subd. (a)(1)) and will be upheld ‘so long as [it] gives notice of the issues sufficient to enable preparation of a defense’ [Citation.]” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.)

i. Uncertainty and duplication

Defendants argue that the causes of action are duplicative and unintelligible and so are subject to demurrer. (Memorandum of Points and Authorities “P&A’s” at p. 3.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond – i.e., defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against defendant. [Citations.]” (Weil & Brown Civil Proc. Before Trial (TRG 2025) §7:85.) The Court reviewed the SAC and does not find it to be so uncertain that defendants cannot respond to it. The demurrer based upon uncertainty is overruled.

Defendants also demur to the SAC based upon duplicative causes of action, arguing that the plaintiffs “routinely allege the elements of one cause of action as part of other causes of action ... .” (MPA at p. 3.)

The demurrer based on this ground is overruled. “In its demurrer, BTC characterized the third cause of action as resting on its allegedly having ‘concealed’ information ‘negligently’ rather than ‘intentionally.’ BTC went on to argue that this was a distinction without legal significance, and that the court should sustain the demurrer because the third cause of action ‘mirrors [the] first cause of action for concealment and is duplicative.’ This is not a ground on which a demurrer may be sustained.” (Blickman Turkus, LP v.

MF Downtown Sunnyvale, LLC (2008)162 Cal.App.4th 858, 889-890.) Defendants complain that the same basic facts underlie, for example, the cause of action for negligence as well as the cause of action for bad faith withholding of a security deposit. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)

ii. Misjoinder of parties/alter ego

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Defendants contend that all the causes of action alleged against Larry Gullman, Linda Gullman, and Bamboo Giant Nursery, Inc. fail, except for common counts, because “the alter ego allegations are entirely conclusory and even unintelligible.” (MPA at p. 5.) Plaintiffs assert the alter ego doctrine is adequately pled and that it is a fact-specific inquiry, which is not suitable for determination on demurrer. (Opp. at p. 9.)

“In order to prevail in a cause of action against individual defendants based upon disregard of the corporate form, the plaintiff must plead and prove such a unity of interest and ownership that the separate personalities of the corporation and the individuals do not exist, and that an inequity will result if the corporate entity is treated as the sole actor. [Citation.]” (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749.) Here, the SAC contains lengthy allegations concerning the applicability of the alter ego doctrine. “There is a unity of interest and ownership between the Gullmans and the Defendant Business Entities so that the separate personalities’ of the corporation and shareholders do not in reality exist.”

The SAC alleges comingling of funds, a failure to observe corporate formalities, and individuals working for different business entities. (SAC at ¶¶ 34-42.) The Court acknowledges defendants’ reply arguments concerning the alter ego doctrine and the allegations concerning the parties. However, this argument appears to be fact driven. If discovery shows the allegations are not supported by the facts or admissible evidence, then defendants can file a motion for summary judgment and/or adjudication.

iii. Plaintiff Leah Leichty Defendants contend that Leichty’s claims, except those for common counts, should be dismissed because she was not a party to the rental contract and is not a minor. The SAC alleges Leichty resided at the Medina property and was sickened during her tenancy due to mold infestation. (SAC at p. 5.)

Only one of the causes of action in the SAC alleges breach of rental contract. The opposition does not really address the issue of whether Leichty can bring a breach of contract claim outside of her claims for breach of the implied warranty of habitability, intentional infliction of emotional distress, and nuisance. Therefore, the demurrer to the cause of action for breach of contract is sustained with leave to amend as to Leichty against defendants. The demurrer to the remaining causes of action she alleges, including breach of warranty of habitability and nuisance, is overruled. (“Nuisance liability is not precluded by the existence of a contractual relationship between the tenant and landlord. It is hornbook law that an act that constitutes a breach of contract may also be tortious.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.))

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iv. Minor plaintiffs

Defendants demur to all the causes of action alleged by the minor plaintiffs because “[t]he SAC entirely fails to specify whether any of the Minor Plaintiffs are legitimate or illegitimate and is therefore presumptively noncompliant with the California Code of Civil Procedure §376, meaning that the Minor Plaintiffs lack capacity to sue here.”

Here the Court signed four orders appointing guardian ad litems: (1) Rachelle Farver was appointed guardian ad litem for Oliver Farver-Davila and Kennedy Kanihan. (2) Dominic Pozzo was appointed for Lorenzo and Loki Pozzo. The SAC complaint asserts in its caption that the minor plaintiffs are represented pursuant to Code of Civil Procedure section 376. If defendants are demurring based upon the reference to Code of Civil Procedure section 376 as opposed to a reference to a “guardian ad litem”, this can error can be easily cured with a revision to the caption page. The demurrers based on this is ground are overruled.

v. Unlawful conduct Civil Code §§ 1940.2 and 789.3

The demurrer to the ninth cause of action for unlawful conduct under Civil Code sections 1940.2 and 789.3 is sustained with leave to amend. The demurrer argues that the SAC does not allege conduct prohibited under section 789.3 which includes interrupting or terminating utility services, removing doors and windows, changing or removing locks, or removing personal items belonging to the tenant. Therefore, the demurrer to this cause of action is sustained with leave to amend.

vi. Retaliation Civil Code § 1942.5 by the Medinas and Farvers v. defendants

Defendants assert the allegations as to this cause of action are deficient because the Medinas and Farvers did not allege that the retaliatory conduct took place within 180 days of either an oral complaint or a written complaint. However, paragraph 177 of the SAC states, “[w]ithin 180 days after each of the Plaintiffs’ respective oral and written complaints to the Defendants about the deficient, uninhabitable, and/or unsafe condition of their respective Rental Properties, each Plaintiff experienced retaliation from Defendants, including threats, and or threats of eviction.”

The SAC alleges that the Medinas complained to the County of Monterey who then inspected the property on June 21, 2023, and issued a citation; the Medinas allege that they were then served with a retaliatory 60-day notice to vacate on July 30, 2023. (SAC at ¶¶ 68-69.) The Farvers allege that defendants’ failure to address their complaints lead to a Santa Cruz County code enforcement inspection on September 21, 2022, and a couple of days later defendants served the Farvers with a retaliatory rent increase. (SAC at ¶ 79.)

The County issued

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another compliance noticed on January 10, 2023; three days later defendants served the Farver defendants with a 60-day notice to quit. (SAC at ¶ 83.) Specific dates can be ascertained through discovery but for the pleading stage, these allegations are sufficient. The demurrer to this cause of action is overruled.

vii. Statute of limitations issue

Defendants argue that many of the allegations and causes of action in the SAC are barred on their face by the applicable statute of limitations. “On the other hand, ‘[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. []’ [Citation.]” (State of California ex rel.

Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 413.) The SAC alleges various dates for discrete problems as well continuing issues throughout the tenancies. To determine the statute of limitations for each cause of action as it relates to each plaintiff would be a highly factual inquiry; the face of the complaint does not clearly demonstrate the causes of action are time-barred. The demurrer is overruled.

III. MOTION TO STRIKE

Code of Civil Procedure section 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Defendants seek to strike various portions of the SAC which they assert should be eliminated “as irrelevant because any cause of action (if any) that could hypothetically arise out of them (assuming their truth) would be time barred.” (MTS at p. 5.) Specifically, defendants take issue with background allegations concerning actions that took place in 2017 and 2020. The Court finds these background allegations to be potentially relevant to the claims asserted, even if they themselves are not the basis for the causes of action. Some of the claims alleged in the SAC appear to commence in 2020 or, perhaps earlier, but some claims are alleged to have continued up until the time the tenancies ended. Therefore, the Court cannot find, on the face of the allegations, that the causes of action are definitively time-barred.

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Defendants also seek to strike various portions of the SAC including references to the nonparties. The Court does not find the references to non-party individuals in the SAC to be irrelevant, false, or improper. The motion to strike those individuals’ names is denied.

The motion to strike also seeks to eliminate references to allegations that defendant Larry Gullman provided employment and housing to a former cellmate, a registered sex offender. The SAC alleges that beginning in 2019, Larry Gullman asked tenants to conceal these facts from authorities, if the tenants were ever asked. The individual’s presence clouded the entire remainder of the Farver’s tenancy, they alleged, and they never felt entirely safe, secure, or comfortable in their dwelling with their minor children.

The individual lived at the property until approximately February 2, 2023. (SAC at p. 28.) Defendants argue this reference is prejudicial and that there is no requirement that landlords disclose the presence of a sex offender on the rental premises nor does the law prohibit a landlord from renting to a sex offender. Plaintiffs counter that these allegations support the cause of action for intentional infliction of emotional distress as it goes to the issue of “extreme and outrageous conduct” because Larry Gullman allegedly told plaintiffs to conceal the individual’s whereabouts from the authorities.

Therefore, the motion to strike these portions of the SAC is denied. The motion to strike the attorney’s fees is denied at this time.

Plaintiffs have 20 days from the date of this hearing to file a third amended complaint in accordance with the Court’s ruling.